Attorney General Mukasey and the Rule of
Law

Reigning in the Lawless White
House

Attorney General
nominee, Judge Michael B. Mukasey was under FBI protection
for 11 years due to threats after presiding over major
terrorist trials. Commenting on the FBI’s decision to end
protection even though some safety concerns remained, the judge
said, “I’m not complaining. I rather like it, being
normal.”

A review of his legal history portrays Judge
Mukasey as a highly intelligent and capable jurist who
stands his ground and displays sympathy for the underdog.
His writing outside of court reveals a traditional
conservative bias with a willingness to engage in
dialog.

New York Senator Charles Schumer (D) suggested him
for attorney general. Schumer told reporters, “While he is certainly
conservative, Judge Mukasey seems to be the kind of nominee
who would put rule of law first and show independence from
the White House, our most important criteria.” Schumer is
a major figure in both the Senate and national Democratic
Party leadership. Ironically, Schumer
is probably more responsible than any for the job opening as
a result of his skilled interrogation of the former Attorney
General.

What more does it take to get approved? But
approval is not the issue.

The U.S. Attorney General
v. A Lawless Administration

The real concern is
simple. Can this nominee reign in and stop the ongoing
illegal acts of the Bush-Cheney administration? The White
House sat idly by while Enron, run by a major Bush
contributor, created a fake energy crisis in California and
took billions of dollars from helpless citizens in a matter
of months. They neglected their duties while people starved
and died in New Orleans. They stood by while financial
institutions more than doubled their profits with payment
and other policies seemingly designed to produce high
penalties.

All that pales by comparison to the Iraq War.
There are nearly 4,000 Americans casualties plus tens of
thousands injured for life. A study by researchers at
Johns Hopkins University published in 2004 placed Iraqi
civilian deaths at 600,000. This month, a British polling
group reported that the figure has risen to 1,000,000
civilian deaths. These staggering figures refer to
people, civilian non combatants, who would be alive were it
not for the Bush-Cheney invasion.

There are now
signs that Bush-Cheney planning for a strike
against Iran. That would result in even more dead and
injured based on justifications as vacant as those used for
the Iraq invasion.

All this leads to the key question.
What can we expect from Judge Mukasey as the United States
Attorney General?

The Judge’s Big
Cases

Let’s look at how he handled two very big
cases.

In 2002, Jose Padilla, a U.S. Citizen, was
arrested as a material witness and eventually charged
with terrorist activities. Judge Mukasey issued the order
for the arrest and detention. Yet the White House objected
to the man even having an attorney. They argued intensely
that Padilla must be denied legal counsel since any
attorney-client contact would result in the defendant
leaking information to associates through his attorney.

Mukasey was a judge of the U. S.. District Court,
Southern District of New York, a position that he held for
nearly two decades. He ruled that Padilla had the right to
counsel; the right to see and work with a lawyer. His 2002
ruling was clear.

Padilla's
statutorily granted right to present facts to the
court in connection with this petition will be destroyed
utterly if he is not allowed to consult with counsel. On the
facts presented in this case, the balance weighs heavily in
Padilla's favor.

The White House was outraged
at the very thought of this defendant having an attorney.
They were also upset with Mukasey. The Washington
Post reported that “Cheney's office insisted on
sending (Ted) Olson's deputy, Paul Clement, on what Justice
Department lawyers called a suicidemission to
tell Judge Michael B. Mukasey that he had erred so grossly
that he should retract his decision.”

Mukasey was not
amused. He had already decided the case. Padilla had a
right to counsel. Rather than accept that and move forward,
the White House challenged his intelligence and skill as a
judge based on petty technicalities.

In reaffirming his
original order, Judge Mukasey issued a devastating
retort: “The government's arguments here are permeated
with the pinched legalism one usually encounters from
non-lawyers.” In this case, the Judge was sending a
message to the trial lawyers and the absent Solicitor
General, Ted Olson. He judged their arguments amateurish.

Destroying Manhattan:
Sheik Abdel-Rahman (left) intended to destroy the New York
courthouse (right) where he was tried by Judge Mukasey. Image left. Image right.

In
the Sheik Abdel-Rahman case, Judge Mukasey
faced Rahman and nine codefendants charged with planning a
series of terror attacks in the New York City. FBI tapes of
Rahman’s crew produced highly disturbing plans:

The most startling
plan, the government charged, was to set off five bombs in
10 minutes, blowing up the United Nations, the Lincoln and
Holland tunnels, the George Washington Bridge and a federal
building housing the FBI.

The Sheik and the
nine plot partners were found guilty, although two
co-defendants were acquitted of some charges. Before
sentencing, Mukasey listened to Rahman’s lecture and
excoriation for over an hour. The Sheik attacked the judge
for conducting an unfair trial and failing to learn about
Islam, all the while claiming that he was a simple preacher
of the word.

Then Mukasey had his turn: "This country has
experienced militant fascism that failed and militant
communism that failed," Judge Mukasey said, adding that "you
and the others sentenced today will never be in a position
to commit such crimes again." He sentenced Rahman to life
in prison.

More Routine Judging – Equity and
Humor

Mukasey handled the case of Susan P.
Lindauer who was accused of being an Iraqi intelligence
agent in an 11 count indictment in 2003. A number of
psychiatrists determined that she had a serious mental
illness which involved paranoid and persecutory delusions
and hallucinations.

While the he government held her
without bail, it petitioned Judge Mukasey to allow the
forced administration of antipsychotic medication. The
argument was that symptom relief would restore Ms. Lindauer
to reality and thus allow a trial.

Judge
Mukasey was quick to point out that “There is no
indication that Lindauer ever came close to influencing
anyone, or could have.” He then denied the request for
forced medication and had Lindauer released from jail. Her
court appointed attorney Sanford Talkin called the decision
a difficult one that was both “right” and “just.”

The governments attempt to punish someone in tragic
circumstances for a crime not committed was foiled.

The
case of independent film makers versus the
Motion Picture Association of America is another David v.
Goliath case. The association had routinely prevented
independents from distributing tapes of their films to
screeners and critics prior to film awards events
claiming that allowing the practice would encourage film
piracy. In effect, this practice put the independents out
of business for weeks at a time and caused financial harm.
Mukasey ruled that it had to stop since it violated federal
antitrust law.

Mukasey took sharp exception to an
immigrant smuggler who professed her love for the United
States in a bid for lenient treatment. Looking directly at
the defendant, the judge responded:

“You are
not the victim of fabricated evidence,'' Judge Mukasey told
her, his tone prickling with indignation. ''You were willing
to take advantage of the attraction of the United States for
thousands of other people and turn it to your financial
advantage.'' New York Times
3/17/2006

When Rep. Tom Feeney, (R-FL)
threatened to gather confidential material from federal
judges to develop profiles of jurists who failed to comply
with mandatory sentencing guidelines, Mukasey shared his opinion of
that: “They can have their blacklists. But we have
life tenure.”

Finally, showing a sense of humor, Mukasey
told attorneys for the Tommy Hilfiger fashion empire
to “chill” regarding patent concerns about a dog perfume
called TimmyHoledigger. He noted dryly, "A
statement drawing a likeness between the buyer's own taste
and that of his or her pet is unverifiable puff.”

Most of
the provisions have nothing to do with the current debate,
including provisions authorizing purchase of equipment for
police departments and the like, and provisions tightening
restrictions on money laundering, including restrictions on
the export of currency, which is the lifeblood of
terrorists.

Law enforcement prior to the act
had unreasonable restrictions which limited evidence
gathering, he asserted. This was caused by a failure to
update laws to match current technology and also through
artificial barriers between intelligence gathering and
criminal investigation divisions with the same agency, e.g.,
FBI.

Mukasey asked, “What difference would this make?”
referring to the updated provisions in the
act.

Well, there is one documented incident
involving an FBI intelligence agent on the West Coast who
was trying to find two men on a watch list who he realized
had entered the country. He tried to get help from the
criminal investigative side of the FBI, but headquarters
intervened and said that was not allowed. That happened in
August 2001. The two men he was looking for were named
Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on
Sept. 11, they were at the controls of the airplane that
struck the Pentagon. Wall Street Journal
5/10/2004

His arguments in Jose Padilla
Makes Bad Law are more reflective and display some
fairly complex reasoning. Taking off on the maxim, big
cases make bad law; Mukasey argued that “The history
of Padilla's case helps illustrate in miniature the
inadequacy of the current approach to terrorism
prosecutions.” He summarizes this in three
points:

1) Antiterrorist prosecutions have
produced limited results yet strained “the financial and
security resources of the federal courts near to the
limit.”

2) “… such prosecutions risk disclosure to
our enemies of methods and sources of intelligence that can
then be neutralized. Disclosure not only puts our secrets at
risk, but also discourages allies abroad from sharing
information with us lest it wind up in hostile
hands.”

3) “…consider the distortions that arise
from applying to national security cases generally the rules
that apply to ordinary criminal cases.”

On one end of
the spectrum, the rules that apply to routine criminals who
pursue finite goals are skewed, and properly so, to assure
that only the highest level of proof will result in a
conviction. But those rules do not protect a society that
must gather information about, and at least incapacitate,
people who have cosmic goals that they are intent on
achieving by cataclysmic means. Wall Street
Journal, 8/22/07.

This last paragraph is
more consistent with the court cases reviewed than the
Patriot Act article. Anti terrorist measures are aimed at
protecting the people and society as a group. Mukasey argues
for what he sees as rational changes in law to catch and
foil those who would attack society at large.

His core
reasoning proposes that the application of traditional legal
rights to fight terrorists conflates two very different
efforts, justice for citizens and protection from
terrorists. This risks infection of the high standards and
protections for citizens with the extreme measures required
to stop enemies leading to a less secure society with fewer
rights. He expressed a sense of urgency to resolve the
contradiction:

Perhaps the world's greatest
deliberative body (the Senate) and the people's house (the
House of Representatives) could, while we still have the
leisure, turn their considerable talents to deliberating how
to fix a strained and mismatched legal system, before
another cataclysm calls forth from the people demands for
hastier and harsher results Wall Street
Journal 8/22/2007

Hisnomination is hardly a
phrase that accurately portrays the process. This is no
more Bush’s nomination than the Gonzales departure was a
Bush dismissal. There are strong pressures influencing this
process. The nominee is not a Bush family friend so far as
we know. He’s not a good old boy that Bush can
nickname and joke with over a long neck beer. He’s from
New York City, born in the Bronx, a committed intellectual
and jurist, with an acerbic wit Is there any Bush
appointee who matches that profile? He’s also Schumer’s
first choice, the man who chased Gonzales out of town.

Somehow
the system and the citizens managed to grab one more chance,
a last chance maybe, to reign in the lawlessness of the
Bush – Cheney administration.

Here are some indicators
to track how well Judge Mukasey is doing in his
constitutionally mandated task as chief law officer for the
United States of America.

Will we see the U.S. Attorneys
use convicted felons like Abramoff and Cunningham to indict
figures higher in the chain of corruption or will they
simply be left on the shelf of bad memories?

Will the
Department of Justice investigate and do something about the
likely crimes in the Enron episode, the Katrina disaster,
and no bid contracts for the Iraq War?

Will the truth be
told to Bush - Cheney about lawless behavior like torture
and preemptive invasions? This is most critical considering
current White House delusions of grandeur associated with an
attack on Iran.

Will Mukasey put a stop to the cynical
deception called voterfraud, a phony
construct perpetrated by the Department of Justice which
results ultimately in the disenfranchisement of minority and
poor voters? And will he vigorously enforce all elections
laws and focus on the crime of election fraud?

Will he
keep a distance form the Giuliani campaign? This is
critical given his previous association with that
effort.

Will he develop some serious skepticism about the
good will of the current administration after a few days of
looking behind the tattered veil and restrain himself from
giving them “the benefit of the doubt.”

Most
importantly, will he say to Bush, “No sir, you cannot do
that. It’s illegal.”

END

N.B. A
small peek in to the nominee’s demeanor can be gained at
this short video clip from the Center for Law and
Counterterrorism, 1/24/07. See video
Chapter 16. Starts at 01:19:42.

While most people agree that increased sugar consumption is a major cause of too many New Zealanders being overweight and obese, what we should do about this remains a matter of debate and argument. More>>

Safe to say that no-one, but no-one has had a better 2016 than Vladimir Putin. What an annus mirabilis it has been for him. Somehow, Russia got away with directly interfering in the US election process, such that a friendly oligarch is about to take up residence in the White House, rather than a genuine rival. More>>

ALSO:

We all supposedly agree that the media is going to hell in a tabloid handbasket, but the trends to the contrary can be a bit harder to spot. In his 1970s book The Right Stuff, Tom Wolfe had mocked the way the media instinctively acts as what he called The Victorian Gentleman. More>>

Fake news as reality; the inability to navigate the waters in which it swims; a weakness in succumbing to material best treated with a huge pinch of salt. That, we are told, is the new condition of the global information environment. More>>

Post-natal depression is a sly and cruel illness, described by one expert as ‘the thief that steals motherhood’, it creeps up on its victims, hiding behind the stress and exhaustion of being a new parent, catching many women unaware and unprepared. More>>

Here’s a somewhat scary headline from October 30 on Nate Silver’s 538 site, which summed up the statistical factors in play at that point: “The Cubs Have A Smaller Chance Of Winning Than Trump Does” More>>